07.02.10

Gemini version available ♊︎

Freedom Defenders Look at the Glass Half Full in the Bilski Aftermath

Posted in Free/Libre Software, IBM, Law, Patents at 9:17 am by Dr. Roy Schestowitz

John Paul Stevens, SCOTUS photo - portrait
John Paul Stevens retires at the age of 90 as the Bilski decision comes out

Summary: A look at the (mostly) positive analyses resulting from the ruling where Stevens was unable to convince a majority of his peers to pull the plug on software patents

THIS is probably our last post that summarises responses to the decision from SCOTUS.

Our goal is to inform readers of interpretations that relevant groups have shared regarding the Bilski case, so it’s more of an overview that encourages to read further into the references. As I started before, IANAL (I am not a lawyer), so I will make no attempt to interpret the document myself and insinuate that my verdict is an informed one. Others who are not lawyers/paralegal researchers do attempt to do just that and they drown out the signal.

“The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling.”Major publications like the New York Times and Washington Post have both covered this ruling [1, 2], which threw out the patent of Bernard Bilski (that is probably the only fact we know for sure).

The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling. In fact, the decision was a very close one and there was a 4-to-5 vote at end.

Pogson offers some reflections on Bilski. He is a Free software proponent and not a lawyer but a teacher and engineer.

The only way this issue can be settled promptly now is by legislation. M$ and its buddies will be lobbying fiercely to have the patent laws explicitly accept software. Unfortunately for them, all software, except perhaps in a controller where the software cannot possibly have multiple uses, is abstract. That is to say, programmes written in a high-level language do not even deal with bits let alone reality. They deal in variables and data-structures, abstractions in themselves. If the legislators allow software patents, they will have to allow patents on abstractions, something they will not do or cannot. That would throw our thoughts and all freedom under the bus. Indeed, one brief they did not reference was about freedom of speech as software. Patents cannot be allowed to restrict freedom of speech.

Michael Barclay, a lawyer, wrote for the EFF that “The Supreme Court Declines to Prohibit Business Method Patents” (his chosen headline). APRIL, a French advocacy group for Free software wrote about this too and here is the summary from its statement which it titled “Bilski case: the United States starts to clean the software patents minefield”

The US Supreme Court has issued on Monday a ruling that many people had been waiting for in the so-called “Bilski” case1, regarding a patent on a business method. This decision, even though it does not exclude every software from patentability, invalidates a majority of them, including those patents on computer implemented intellectual methods. It is now time for European lawmakers to halt software patents’ proliferation in Europe.

The FSF’s Peter Brown looks at/accentuates the positives:

Bilski gave us a wonderful opportunity to increase awareness to the harm caused by software patents. More scholars, more developers, more journalists, more politicians, and more patent attorneys than ever before have heard from our community on this issue. What’s next?

So again we see an example of the FSF being positive, not negative. It is mostly constructive in its approach, contrary to claims from those who wish to daemonise the FSF. Yesterday we summarised some opinions from the SFLC's Professor Dan Ravicher. There is also a new summary at Groklaw, focusing on Stevens (whose role Ravicher did not particularly like because of cynicism). Pamela Jones argued about Stevens:

He’s actually read and absorbed James Bessen’s book Patent Failure and he comprehends the dangers and the costs that such patents present. Thank you, Jim Bessen (and co-authors Mike Meurer, Eric Maskin and Bob Hunt), for all your careful and helpful work, educating judges and lawyers to the dangers of software patents. Significantly, Stevens is joined by Justices Ginsburg, Breyer and Sotomayor. Even Justice Scalia, in a separate concurring opinion written by Justice Breyer, agreed that business methods should not be granted patents. That’s five Supreme Court judges. As Tom Goldstein of SCOTUSblog points out in his analysis of the Bilski opinion, that means that business methods patents survived by a single vote. And even at that, the opinion stated that few such methods should be granted a patent.

Here is another decent analysis from a legal blog. It’s outlined as follows: [via Digital Majority]

Sifting through the clues to patentability: Four take-home points from Bilski’s mixed bag

[...]

1) State Street Bank’s “useful, concrete, and tangible result” test is dead.

[...]

2) Abstract ideas likely include “basic concepts” and methods that can be reduced to a mathematical formula.

[...]

3) Parker v. Flook’s “field of use” and “postsolution activity” limitations are alive and well.

[...]

4) Expect more Section 101 challenges, especially at the early stages of patent litigation.

Rob Tiller from Red Hat (he too is a lawyer) wrote about this decision in a rush (Red Hat worked vigourously to eliminate software patents, unlike IBM).

Dana Blankenhorn correctly points out that Florian Müller is unfairly singling out IBM, as though IBM was the sole proponent of software patents.

Given the failure of the Bilski case to change the status quo regarding software and business method patents, the search is on for scapegoats, for weak sisters in the anti-patent fight who can be made open to criticism.

It is similar to what happens after a losing political campaign. Those most committed to the cause argue that it’s weak supporters, those willing to do business under the given circumstances, who are responsible for their political failure.

So it is that Florian Mueller of Fosspatents has seized upon IBM.

We have grown increasingly suspicious of Müller. He keeps trying to find ‘enemies’ other than Microsoft and then incite the “FOSS” crowd (as in “FOSSPatents” @ Blogspot) against that imaginary boogeyman. IBM is a favoured choice for a scapegoat due to its size, regardless of its many contributions to “FOSS”, which are very much appreciated. As one commenter puts it in Blankenhorn’s blog, “Now, I understand what Free Software is (as in Richard Stallman’s stance), and I understand what Open Source is (as in Eric Raymond’s stance). And isn’t the definition of FOSS is the union of Free Software and Open Source Software – i.e., F/OSS.

“Dana – what do you mean by FOSS? Are you confusing FOSS with Open Source?”

Florian defended proprietary software in Techrights comments; he is not a proponent of the “F” in FOSS, as even his lobby with MySQL helped to show. In many new posts about “interoperability” as the theme in the headlines (the word “interoperability” is used to dodge open standards), Müller continues to sing the same tune this week. About an hour ago he mailed me to incite against Apple at Microsoft’s expense. Typical. In his blog he currently promotes action and regulation against Microsoft adversaries.

As the old saying goes, Müller “has got some ‘splaining to do”. Only a mule would not change its stance when new information arrives and given what we have shown him about Microsoft, he continues to ignore Microsoft’s negative effects on “FOSS” (especially the “F”, which means freedom).

As the Bilski hype draws to a close, some go further and ask themselves about the impact as far as biotech patents are concerned (think Monsanto).

A Supreme Court ruling June 28 on idea patents disappointed those hoping for an overhaul of intellectual property claims for software, but it may inspire new patent tests aimed at the legally troublesome biotechnology field.

According to the court, the widely followed “machine-or-transformation” test — which limits patents to machines designed for a specific purpose, or processes that physically transform an object — is outdated. This test is also at the heart of at least two other legal cases currently being contested that could shape the future of the biotech business.

Patents on life? Why not? It’s good for lawyers. Apparently life counts as an “invention” now (if genes are perturbed in scarcely or totally misunderstood ways) to yield seemingly-desirable traits. Just ignore the side effects, much like in the patent system.

Glass filled

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 23/1/2022: MongoDB 5.2, BuddyPress 10.0.0, and GNU Parallel 20220122

    Links for the day



  2. A Parade of Fake News About the UPC Does Not Change the General Consensus or the Simple Facts

    European Patents (EPs) from the EPO are granted in violation of the EPC; Courts are now targeted by António Campinos and the minions he associates with (mostly parasitic litigation firms and monopolists), for they want puppets for “judges” and for invalid patents to be magically rendered “valid” and “enforceable”



  3. Welcome to 2022: Intentional Lies Are 'Benefits' and 'Alternative Facts'

    A crooks-run EPO, together with the patent litigation cabal that we’ve dubbed ‘Team UPC’ (it has nothing to do with science or with innovation), is spreading tons of misinformation; the lies are designed to make the law-breaking seem OK, knowing that Benoît Battistelli and António Campinos are practically above the law, so perjury as well as gross violations of the EPC and constitutions won’t scare them (prosecution as deterrence just isn’t there, which is another inherent problem with the UPC)



  4. From Software Eating the World to the Pentagon Eating All the Software

    “Software is eating the world,” according to Marc Andreessen (co-founder of Netscape), but the Empire Strikes Back (not the movie, the actual empire) by hijacking all code by proxy, via Microsoft, just as it grabbed a lot of the world’s communications via Skype, bypassing the world's many national telecoms; coders need to fight back rather than participate in racist (imperial) shams such as GitHub



  5. Links 22/1/2022: Skrooge 2.27.0 and Ray-Tracing Stuff

    Links for the day



  6. IRC Proceedings: Friday, January 21, 2022

    IRC logs for Friday, January 21, 2022



  7. Peak Code — Part II: Lost Source

    "Debian and Mozilla played along. They were made “Yeoman Freeholders” in return for rewriting their charters to “work closely with the new Ministry in the interests of all stakeholders” – or some-such vacuous spout… because no one remembers… after that it started."



  8. Links 22/1/2022: Ubuntu MATE 21.10 for GPD Pocket 3, MINISFORUM Preloads GNU/Linux

    Links for the day



  9. Computer Users Should be Operators, But Instead They're Being Operated by Vendors and Governments

    Computers have been turned into hostile black boxes (unlike Blackbox) that distrust the person who purchased them; moreover, from a legislative point of view, encryption (i.e. computer security) is perceived and treated by governments like a threat instead of something imperative — a necessity for society’s empowerment (privacy is about control and people in positions of unjust power want total and complete control)



  10. Peak Code — Part I: Before the Wars

    Article/series by Dr. Andy Farnell: "in the period between 1960 and 2060 people had mistaken what they called "The Internet" for a communications system, when it had in fact been an Ideal and a Battleground all along - the site of the 100 years info-war."



  11. Links 21/1/2022: RISC-V Development Board and Rust 1.58.1

    Links for the day



  12. IRC Proceedings: Thursday, January 20, 2022

    IRC logs for Thursday, January 20, 2022



  13. Gemini Lets You Control the Presentation Layer to Suit Your Own Needs

    In Gemini (or the Web as seen through Gemini clients such as Kristall) the user comes first; it's not sites/capsules that tell the user how pages are presented/rendered, as they decide only on structural/semantic aspects



  14. The Future of Techrights

    Futures are difficult to predict, but our general vision for the years ahead revolves around more community involvement and less (none or decreased) reliance on third parties, especially monopolistic corporations, mostly because they oppress the population via the network and via electronic devices



  15. [Meme] UPC for CJEU

    When you do illegal things and knowingly break the law to get started with a “legal” system you know it’ll end up in tears… or the CJEU



  16. Links 20/1/2022: 'Pluton' Pushback and Red Hat Satellite 6.10.2

    Links for the day



  17. The Web is a Corporate Misinformation/Disinformation Platform, Biased Against Communities, Facts, and Science

    Misinformation/disinformation in so-called 'news' sites is a pandemic which spreads; in the process, the founder of GNU/Linux gets defamed and GNU/Linux itself is described as the problem, not the solution to the actual problems



  18. Links 20/1/2022: McKinsey Openwashing and Stable Kernels

    Links for the day



  19. IRC Proceedings: Wednesday, January 19, 2022

    IRC logs for Wednesday, January 19, 2022



  20. Links 20/1/2022: Linuxfx 11.1 WxDesktop 11.0.3 and FreeIPMI 1.6.9 Released

    Links for the day



  21. Links 19/1/2022: XWayland 22.1 RC1 and OnlyOffice 7.0 Release

    Links for the day



  22. Links 19/1/2022: ArchLabs 2022.01.18 and KDE's 15-Minute Bug Initiative

    Links for the day



  23. When Twitter Protects Abusers and Abuse (and Twitter's Sponsors)

    Twitter is an out-of-control censorship machine and it should be treated accordingly even by those who merely "read" or "follow" Twitter accounts; Twitter is a filter, not a news/media platform or even means of communication



  24. IRC Proceedings: Tuesday, January 18, 2022

    IRC logs for Tuesday, January 18, 2022



  25. Links 19/1/2022: Wine 7.x Era Begins and Istio 1.12.2 is Out

    Links for the day



  26. Another Video IBM Does Not Want You to Watch

    It seems very much possible that IBM (or someone close to IBM) is trying to purge me from Twitter, so let’s examine what they may be trying to distract from. As we put it 2 years ago, "Watson" is a lot more offensive than those supposedly offensive words IBM is working to purge; think about those hundreds of Red Hat workers who are black and were never told about ethnic purges of blacks facilitated by IBM (their new boss).



  27. What IBM Does Not Want You to Watch

    Let's 'Streisand it'...



  28. Good News, Bad News (and Back to Normal)

    When many services are reliant on the integrity of a single, very tiny MicroSD card you're only moments away from 2 days of intensive labour (recovery, investigation, migration, and further coding); we've learned our lessons and took advantage of this incident to upgrade the operating system, double the storage space, even improve the code slightly (for compatibility with newer systems)



  29. Someone Is Very Desperate to Knock My Account Off Twitter

    Many reports against me — some successful — are putting my free speech (and factual statements) at risk



  30. Links 18/1/2022: Deepin 20.4 and Qubes OS 4.1.0 RC4

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts